LAWYERS AS LEADERS

Reviewed by Daniel Reynolds, College of Law, Northern Illinois University

pp.183-85

As a topic, “lawyers as leaders” has something of a Rotary Club luncheon-talk air about it. But when a scholar with the academic chops of a Deborah Rhode takes it on for book-length treatment, attention must be paid. Rhode is the Ernest W. McFarland Professor of Law at Stanford and the founder of Stanford’s Center on the Legal Profession. For some three decades she has been a persistent and persuasive voice in academic critiques of the legal profession and a leader herself in the profession’s struggles with its own ethical aspirations for pro bono publico (uncompensated) service and gender diversity.

Her central argument in this, her latest book, is that the elements of effective leadership are identifiable and susceptible to formal teaching or at least acquisition by assiduous cultivation. Her emphasis, however, is very much on the identification and exercise of leadership qualities and not so much on their acquisition. The acquisition question is an interesting one, given that most people come to law in their late twenties or early thirties, already encumbered with habits of thought and personal traits that may or may not be fertile ground for transformations. Are leaders made, not born? Can charisma be taught? In any event, Professor Rhode elsewhere is very much on the side of teaching, though in this book she limits herself on that question largely to an advocacy of mentoring.

Her main project here is toward identifying the characteristics associated with successful leaders. To that end, she draws extensively and (surprisingly) rather uncritically on “experts” and a large social science literature describing and surveying reported attributes and examples of leadership successes and failures. While the findings of social science can often seem cold and lifeless on the page, Professor Rhode manages to present them vividly: in every paragraph, in nearly every sentence, she offers telling examples or memorable quotations coloring the portrait of the successful leader and the failed one, too. From P.G. Wodehouse to Justice Thurgood Marshal, Erasmus of Rotterdam to Richard Nixon: reading Rhode is a rat-a-tat-tat of the mot juste, the perfect anecdote to be savored and saved for future use (A task, it must be said, not made easy by Oxford University Press. With over 1000 end-notes, could not a few pages have been reserved for a standard bibliography? And must we really be resigned to the inevitability of several typographical misprints? From Oxford?).

Rhode lays out a catalogue of the virtues and vices of leadership, laden with a sometimes dizzying array of the antinomies inherent in describing such a many-faced phenomenon. Leaders are “decision makers” – except when their [*184] situations caution deference to others or even inaction. They develop strategies of influence that stem from positions of power – but neglect the power of their followers at their peril. They are “conflict managers,” a role that engenders their best ideas – and worst failures. Finally, they are communicators and here Rhodes’s précis of the arts of public speaking and oral advocacy is a real stand-alone gem, evoking examples from Cato to FDR, Lincoln to Larry King.
But the idea of “leadership” seems to presume a goal, a destination just over the horizon, toward which all efforts bend. In a chapter discussing leadership in movements for social change, Rhode can explicitly recognize this. The goal of social change is, after all…social change. Here she can offer insightful history and critique of lawyers in leadership roles for the legally-framed social and political challenges to racial segregation and gay marriage. But a skeptic might note that lawyers are to be found on all sides of such challenges. John W. Davis, after all, was no less a lawyer for losing BROWN V. BOARD OF EDUCATION at the Supreme Court than were his predecessors who lost the PLESSY case which BROWN overruled.

So what does all this have to do with work-a-day lawyers as lawyers? Like most contemporary research and writing on the legal profession, both scholarly and not, the book’s focus is relentlessly on what has become known as “Big Law,” the 10 or 100 or 200 largest private law firms, with their very telling favored metrics such as “profits-per-partner.” Rhode presents a useful summary of some of the more salient shipwrecks among these titans in recent years, dissecting them to find failures of leadership. Such failures are certainly to be found but so, too, is their inescapable context: the environment Rhode describes where money is the only glue holding a firm together, where self-interested behavior is richly rewarded and older values of collegial partnership given only passing lip service. This is the “new normal” where greed is rampant but where, she writes with some force, greed “needs to be managed, not simply lamented.”

Here Rhode can offer a number of goals and markers of successful leadership within today’s law firms. For at least two of those goals she herself has long been a voice of reform: the provision of pro bono legal services and the elimination of barriers to racial and gender diversification of the legal profession. Both, no doubt, are consummations devoutly to be wished, but Rhode cautions against their taking on the protective coloration of that pervasive, profit-driven environment of the “new normal.” Law firm leaders, she counsels, must instill a valuation of pro bono services that goes beyond their instrumental uses for training, publicity or simply giving near-retired lawyers something to do. Put the “publico” back into “pro bono publico,” she would argue, in order to restate and affirm the profession’s public service character. And diversity, too, must be valued beyond its contribution to the bottom line.

But that bottom line can be a cruel master of the best of leaders. And here a doubt begins to rise. This book clearly recognizes the economic imperatives of the “new normal.” They lurk between every line of Professor Rhode's analysis [*185] of leadership in law firms. But are the deftly described leaders she calls for up to her task of “managing greed?” Or have the rules of the game changed in some fundamental ways? No one wants to revive the largely inane “profession v. trade” debate of a generation ago – a debate inspired by reform of the profession’s anti-advertising rules, rules which today seem quaint relics of a long-gone era. But the social and cultural winds seem to have shifted markedly since then and law, like most other endeavors, is swept up in the eddies. A perceptual gap, an aspirational gap, widens between a legal profession and a legal services industry. There certainly are leaders of great law firms who will raise no objection to their transformation from Presiding Partner to CEO. But while much might be gained in such transformations, what might be lost?

Professor Rhode, an astute critic of professional regulation, counsels accommodation to the economic changes and challenges confronting law’s environment and, almost in passing, encourages her ideal leaders to be open to such regulatory innovations as “lay investment” in law firms, something currently forbidden by professional law. But “lay investment” is anodyne for Wall Street and Wal-Mart – the two raptors circling over either end of the spectrum of that legal services industry, watchfully awaiting its complete commodification. Public accountancy may have already crossed that bar, medicine is well on its way – can law be far behind? Professor Rhode counsels that “greed must be managed” and exudes a bracingly optimistic confidence that it can be, that the leaders she paints in such vivid color will lead the profession to a better world of excellence where the eager embrace of pro bono service is inspired in others by a happily diverse cadre of expert navigators over the rocky conflicts and competing interests she catalogs so well.

One may hope she is right. The future she offers is compelling. But a reader may still entertain doubts that “leadership” itself is the answer to the vexing questions facing the legal profession.